Charlie McCreevy and his fellow gold prospectors

It is to be hoped that the court will maintain its recent record of sensible and realistic interpretation of social legislation.

The European Commission, the ECJ and Internal Market Commissioner Charlie McCreevy are like three prospectors in search of gold, or rather – in Euro-speak – the right balance between social and economic interests. Their ideas differ markedly on where to dig.

The ECJ’s recent demonstration of what I regard as a rational and pragmatic interpretation of labour market regulations differs markedly from that of the Commission, heavily supported by McCreevy.

So far, the ECJ has rejected the Commission’s line on the posting of workers directive and other labour market-related issues, on which the Commission has lately argued for a literal interpretation of key European social legislation.

In the Commission v Germany case (C-490/04) in July, the Commission argued that Germany should not be allowed to demand relevant employment documentation in the host country language.

This would be “unjustified and disproportionate”, the Commission position being that the system of co-operation between member states established by the posting of workers directive made such requirements superfluous.

The implication was that effective monitoring, with legal obligations to ensure effective worker protection, could be discounted.

There has been a refreshing pragmatism on the part of the ECJ. It chose to accept that Germany can oblige foreign undertakings to provide employment contracts under German law; it also allowed Germany to demand documentation in German.

In the ongoing Rueffert case (C346/06), where a German court asked whether the posting directive should be interpreted as a minimum directive, the Commission refuses to accept that remuneration higher than minimum wages could apply. It implicitly favours wage competition by arguing that normal wages for posted workers constitute an obstacle to free movement.

Advocate-General Yves Bot convincingly argued that the posting directive should be interpreted as a minimum directive, again in contrast with the opinion of the Commission.

In another case, C-411/05, concerning age discrimination, the ECJ found that the social partners enjoy broad discretion in their choice, not only of whether to pursue a particular aim in the field of social and employment policy, but also in the definition of measures to achieve it.

It is possible to discern here an understanding on the part of the court of both the rationale and the practicalities behind social legislation and of the role of the social partners.

It may be time for the Commission to follow suit.